The “Pen and Phone”: Executive Action in Immigration Reform

The comprehensive immigration reform package passed by the Senate last year has yet to be taken up by the House of Representatives, due to partisan disagreement over issues such as the path to citizenship and reinforcement of border security. Meanwhile, President Obama has come under increasing pressure to use his executive power to unilaterally suspend deportations. There have been about 2 million deportations under this administration—a number that exceeds that of previous administrations—and Democratic legislators as well as immigration activists have called on President Obama to take action instead of waiting for Congress. The President did promise during his 2014 State of the Union address to use his “pen and phone” to overcome Congressional gridlock when necessary, and he has taken measures such as halting the deportation of “Dreamers” and ordering a review of the administration’s immigration policies to determine ways to make it more humane. However, he has resisted using his executive power to suspend deportations on a large scale so far, and he is right to do so.

As observed in a report by the Brennan Center for Justice, executive power has been used in expansive ways by both progressive and conservative presidents in the past: President Reagan imposed greater oversight and control over agency actions by creating the Office of Information and Regulatory Affairs (OIRA), President Clinton catalyzed welfare reform through the Department of Health and Human Services, and President Bush issued orders ranging from the establishment of the Department of Homeland Security to the revision of rules for detention and interrogation. As a result, executive power has become a malleable tool that can serve a wide spectrum of policy goals, and public reaction to the use of executive power tends to turn on partisan considerations (Democrats protest when it’s used by a Republican president, and Republicans protest when it’s used by a Democratic president) rather than on doctrinal considerations such as separation of powers.

Despite the belief by some activists that the President has “a power to stop deportation for all undocumented immigrants in this country” (as articulated by a heckler during a speech by President Obama last November), that kind of sweeping executive action would be problematic both legally and politically. Legally, the President does have prosecutorial discretion, but putting an end to all deportations could be deemed an abuse of that discretion. Although courts are traditionally deferential to the executive branch on matters of immigration and border security, this deference is not absolute. Politically, this kind of action would provide a justification for future presidents who want to use executive power to reverse the progress made on immigration policy. Executive action can and should play a role in the continuing push for immigration reform, but it is important to remember that expansion of executive power is a double edged sword.